JUDGMENT - A.A. HALBE, PRESIDENT.:---Shri Nilesh S. Joshi, aged about 29 years with his parents Shri Sadanand Dattatraya Joshi (father) Mrs. Asha S. Joshi (mother), Mrs. Shibani N. Joshi (wife) and Master Archit N. Joshi (son) have filed this complaint against Dr. C.P. Lulla, Radiologist attached to "Diagnostic Centre Clinic, Mumbai" belonging to O.P. No. 2 3 Dr. V.T. Shah and Dr. (Mrs.) M.V. Shah for awarding of compensation of Rs. 9,99,000/- for the gross negligence in the treatment for Bronchography carried out on Nilesh Joshi on 14-3-91. Nilesh has been reduced to vegetable. He is rendered speechless, wheel-chaired, spastic who can not comprehend anything who only laughs and cries without any reason and is spending utterly meaningless and hopeless life causing considerable hardship, inconvenience and mental torture to the parent's life and other i.e. of his wife's and son's life also. Nilesh had a bright academic career and was employed with Empire Industries Ltd., Mumbai on the monthly gross salary of Rs. 3,500/- at the time of incidence. However, on account of above condition of health, he is unable to earn even a farthing. But on the other hand has become a serious financial mental burden on the family members. Nilesh was suffering from cough and was, therefore, recommended by his family-doctor Dr. M.B. Natu to Dr. Shah for the purpose of Bronchography. On 12th March, 91, Shri Joshi paid Rs. 500/- to Dr. Shah at his clinic. He was called on 14th March, 91 and accordingly, Nilesh accompanied his father Sadanand arrived at the clinic on 14th March, 91 at about 8.00 a.m. Routine health check up was conducted, urine, blood and sputum tests were also conducted and in all the tests, nothing abnormal was detected. By about 11.00 a.m., Nilesh left the clinic and reported back at about 1.00 p.m. for Bronchography. O.P. Dr. Lulla, Radiologist began with the bronchography by inserting the catheter by nasal-cavaty; but failed as there was bleeding. He inserted catheter in both the nasal cavities; but bleeding was the only response. He, therefore, inserted catheter in to the oral cavity where also bleeding took place from the mouth. On account of bleeding from both the cavities of the nose as well as from the mouth, Nilesh screamed on account of serious pain. Despite this condition, Dr. Lulla inserted the catheter through nasal-cavities and in consequence, Nilesh suffered convulsionsbouts. He, therefore, inserted catheter in to the oral cavity where also bleeding took place from the mouth. On account of bleeding from both the cavities of the nose as well as from the mouth, Nilesh screamed on account of serious pain. Despite this condition, Dr. Lulla inserted the catheter through nasal-cavities and in consequence, Nilesh suffered convulsionsbouts. There arose cardiac problem and Nilesh was, therefore, shifted to Sion Hospital. He had gone into coma even before his admission to Sion Hospital. Dr. Lulla tried to obtain signature of Sadanand Joshi on the consent form; but he has strongly resisted and scratched across the consent-form. Sadanand Joshi complained to the police and Dr. Lulla also gave his written-statement to the police. These documents are on record. Nilesh was examined at the Sion Hospital and was treated as Indoor Patient from 14-3-91 to 27-3-91; whereafter he was admitted to Hinduja Hospital till upto 6-5-91. It is alleged that Nilesh suffered Anoxic Brain damage on account of the rash and negligent act on the part of Dr. Lulla in inserting the catheter through nasal cavities and oral cavity. He, however, persisted in carrying out the bronchography and in the result, the victim suffered convulsion-bouts and has become vegetable. According to the complainants, the standard procedure should have been followed. In the first instance, Nilesh was not acquainted with the risk involved in the bronchography. No written-consent was obtained. Intravenous Diazepam should have been administered and there should have been adequate sedation before intubation so as to avoid possibility of voluntary or in voluntary movement or resistance to the maneouvering of the catheter tube through the sensitive and vital respiratory tract. Opiates should have been avoided and atropine which is opiate was, on the other hand administered. The complainant has tried to describe the process of insertion preceded by administration of local anesthesia by anaesthetist. To this aspect, we shall come later while discussing the matter in detail. However, according to the complainants, no such precautions were taken. But Dr. Lulla, on the other hand, inserted the catheter in dis-regard of bleeding from all the cavities. Dr. Lulla should have avoided bronchography in such a situation. The complainants have pointed out that Nilesh is fully paralysed and suffered anoxic brain damage (post cardio vascular arrest), the complainants have claimed that O.P. No. 2 3 also joined Dr. But Dr. Lulla, on the other hand, inserted the catheter in dis-regard of bleeding from all the cavities. Dr. Lulla should have avoided bronchography in such a situation. The complainants have pointed out that Nilesh is fully paralysed and suffered anoxic brain damage (post cardio vascular arrest), the complainants have claimed that O.P. No. 2 3 also joined Dr. Lulla in inserting the catheter when there was resistence from Nilesh. Dr. Lulla is attached to this Hospital. The Hospital provided infrastructure for the operation and hence all the O.Ps. are liable to pay Rs. 7,00,000/- for deprivation of employment of Nilesh; Rs. 2,00,000/- on account of physical and mental injury to Nilesh and Rs. 95,000/- for agony, trauma and cost of Rs. 4,000/-. In all total claim is for Rs. 9,99,000/-. 2.Dr. Lulla, O.P. No. 1, in his lengthy written-statement, has made all attempts to justify his approach to bronchography on Nilesh. He has fairly conceded that bouts of convulsion was never expected nor medically envisaged in the treatment which he gave to Nilesh. Post Cardiac Vascular Arrest crops up suddenly and that he is unable to explain as to what could be the cause of the cardiovascular arrest. He has contended that he followed the standard and safe method of insertion of catheter after administering the necessary medicines, and rubber catheter was introduced after lubrication in the nasal cavity. According to him, he had explained the procedure and risk involved in the operation, to Sadanand Joshi and Nilesh Joshi. Dr. Natu had referred the patient for the procedure of Bronchography, to Dr. Shah and preliminary tests were to be carried out in accordance with the settled medical practice. Dr. Lulla performed the best intubation method application in cases of co-operative adult patient. Intubation means the insertion of catheter towards the larynx without the general anaesthesia. He had adopted the observations of "Principles of Chest X-Ray Diagnosis" written in the book by Dr. George Simon in Chapter II "Technique of Bronchography". He has stated that the Radiologist has to perform bronchography if referred to by the physician. The best method in a co-operative adult patient is that the mucosa of the upper respiratory passages in anaesthetized by spraying on a local anaesthetic such as Xyloclaim 4%, 2mls. for upper nasal and 2 mls. to be spread in the opening of larynx. He has stated that the Radiologist has to perform bronchography if referred to by the physician. The best method in a co-operative adult patient is that the mucosa of the upper respiratory passages in anaesthetized by spraying on a local anaesthetic such as Xyloclaim 4%, 2mls. for upper nasal and 2 mls. to be spread in the opening of larynx. Two minutes thereafter the catheter is passed through the larynx in to trachea. This can be carried out even on the patient is sitting or standing. He has stated that in this case, he has used a polythene catheter of 5 ml. size. The same was passed through the nose. He has denied that there was bleeding from nasal cavities and that he persisted the insertion of catheter. He has also denied that Mr. and Mrs. Shah joined him in inserting the catheter by using additional force. Had Nilesh been non-co-operative, he would have resisted by closing the mouth to prevent insertion of catheter. On the other hand, the catheterisation was comfortable because after 10 minutes of catheterisation, Nilesh was taken to x-ray table. He could talk and was normal. However, when Nilesh was taken to x-ray table, within a short time thereafter, he got bouts of convulsion for no apparent cause. However, surgeon and anaesthetist were called as they were present in the dispensary. Complete care was taken and full medical attention was paid. There was necessary cardiopulmonary resuscitation facilities including oxygen, ambubag, defibrilater etc. in the Hospital and it would be false to suggest that no oxygen was there. Nilesh and his father was given clear understanding about the nature of bronchography and the risk involved therein. This happened before the insertion of catheter for the purpose of bronchography. He has denied that radiologist is unaware of the procedure involved in the administration of anaesthesia. On the other hand, every radiologist is trained to carry out local anaesthesia. In case of bronchography, no general anaesthesia in necessary more particularly when the patient is co-operative. Intubation in this case was not by endotracheal tube but by thin catheter which when inserted through the mouth help the passage in case of co-operative adult. Dr. Lulla has, therefore, contended that he was not at all negligent and that the procedure described by the complainants in carrying out the Bronchography is not at all relevant. Intubation in this case was not by endotracheal tube but by thin catheter which when inserted through the mouth help the passage in case of co-operative adult. Dr. Lulla has, therefore, contended that he was not at all negligent and that the procedure described by the complainants in carrying out the Bronchography is not at all relevant. Intravenous Diazepam is not done in India because the same is not available. Surgeon must also know about this. Administration of local anaesthesia is a must prior to the procedure carried out for the above purpose. The other medicine viz. Xylocain Gel is in use in this country. He has thus denied that he was negligent in performing the bronchography. He has further contended that he is in employment of O.P. No. 2 3 and that there is no privity of contract between the complainant and the O.P. No. 1. He has obtained M.D. in Radiology and working as Radiologist in many Hospitals. The catheters used were sterilised and were not repeated at every insertion. The case of cardiac arrest is unknown in such bronchography and that its occurrence has nothing to do with the bronchography carried out in manner, by Dr. Lulla. He has contended that the claim is beyond limitation. 3.The O.P. No. 2 3 have contended that the O.P. No. 1 is attached to their Hospital as Consultant and that it is he who carried out the bronchography and that they furnished all necessary equipment for the purpose. They have denied that they assisted Dr. Lulla in inserting the catheter in Nilesh's mouth inspite of resistance by Nilesh. Nilesh Joshi was further informed about the risk and his informed consent was obtained. O.P. No. 2 3, therefore, extricate themselves from the incident by contending that Dr. Lulla was the Consultant who carried out the bronchography on Nilesh on his own and that he was paid his dues, in the shape of fees. O.P. No. 2 3 maintained accounts and have described Dr. Lulla as the Consultant entitled to varying amounts. 4.Now, the undisputed facts are that on 14-3-91, Nilesh underwent bronchography at the hospital of O.P. No. 2 3 at the hands of Dr. Lulla, the O.P. No. 1. He suffered anoxic brain damage. He was in the Sion Hospital from 14-3-91 to 27-3-91 and thereafter from 27-3-91, he was at the Hinduja Hospital right upto 6-5-91. 4.Now, the undisputed facts are that on 14-3-91, Nilesh underwent bronchography at the hospital of O.P. No. 2 3 at the hands of Dr. Lulla, the O.P. No. 1. He suffered anoxic brain damage. He was in the Sion Hospital from 14-3-91 to 27-3-91 and thereafter from 27-3-91, he was at the Hinduja Hospital right upto 6-5-91. His present condition is described by the both hospitals. According to Bombay Hospital (Outdoor Case Paper) dt. 29-7-92, Nilesh is a case of Anoxic Brain Damage (Post Cardio Respiratory Arrest) following the radiographic procedures of bronchography. He is unable to talk, unable to express himself, unable to urinate and these are all suggestive of anoxic brain damage. He does not follow commands, makes sounds on his own, laughs on his own. He is spastic having suffered the anoxic brain damage. 5.The Hinduja Hospital in its Certificate dt. 21-3-92 has certified that Nilesh Joshi has anoxic brain damage on 14-3-91. On examination after one year, he is still very much handicapped. He is still wheel chair bound, can not speak, on catheter, spastic all 4 limbs and can not stand or comprehend. His recovery is very uncertain and needs follow up. Now turning back to the Certificate issued by Bombay Hospital, dt. 29-7-92, it is very apparent that Nilesh Joshi has suffered irreversible anoxic brain damage and is practically invalid for all purpose. On the other hand, his behaviour symbolises that he has lost all senses. He can not stand; whereas he laughs on his own, unconnected with any event. We are, therefore, firmly of the opinion that Nilesh Joshi suffered anoxic brain damage on the day of bronchography done on 14-3-91 at the Hospital of O.P. No. 2 3. Undisputably, the bronchography was carried out by Dr. Lulla. We may further state that the O.P. No. 2 3 did not play any role in this bronchography. The representatives of the complainants have fairly conceded that they do not press their claim that the O.P. No. 2 3 assisted O.P. No. 1. Dr. Lulla in pushing the catheter in the cavity of Nilesh. Even Dr. Lulla's written-statement denies the assistance by O.P. No. 2 3 and in that light of the matter, the bronchography was exclusively carried out by the O.P. No. 1 Dr. Lulla and certainly not by the O.P. No. 2 3. Dr. Lulla in pushing the catheter in the cavity of Nilesh. Even Dr. Lulla's written-statement denies the assistance by O.P. No. 2 3 and in that light of the matter, the bronchography was exclusively carried out by the O.P. No. 1 Dr. Lulla and certainly not by the O.P. No. 2 3. In the consequences of this bronchography, therefore, O.P. No. 2 3 can not be held liable. 6.We may, therefore, travel to the case canvassed on behalf of the O.P. No. 1. Briefly stated, O.P. No. 1 has contended that he has followed the standard method prescribed for bronchography. For that purpose, he supported by the affidavits of Dr. Bharati Dhondu Kondwilkar, Dr. Praveen K. Jain who claimed to be just physician and are well conversant with bronchography. Both have unanimously suggested that the method which was represented before them by Dr. Lulla, in performing the bronchography was as per the standard medical literature. There was nothing which could be said to be an act of negligence on the part of Dr. Lulla. Both these Doctors, therefore, help the O.P. No. 1 in his attempt to show that the standard methods were followed and that the incident of convulsions was never predicted nor envisaged in the bronchography. Occurance of convulsions, according to Dr. Lulla, is un-expectable. But it could not be related to the alleged negligence. There was no negligence and hence whatever Nilesh suffered was an unfortunate event which could not be visualised in the matter of bronchography. 7.Dr. Lulla has tried to described the bronchography process carried out on Nilesh Joshi. On 14-3-91, Nilesh was called in the morning for investigation. He was required to come at 1.00 p.m. Accordingly, he did come by 1.00 p.m. He was normal and that 5 ml. catheter with jelly applied at the end was attempted to be inserted in the nasal cavity and in the mouth cavity. This was done after the adequate anaesthesia administered to Nilesh Joshi. He is a literate person and was acquainted with the procedure of bronchography. He was also acquainted with the risk involved in this bronchography. In the first instance, the catheter could not be inserted from either cavities. There was bleeding both from nose and mouth. But after further attempt, the catheter was inserted through nasal cavity. Nilesh was standing and was quite in senses. He was also acquainted with the risk involved in this bronchography. In the first instance, the catheter could not be inserted from either cavities. There was bleeding both from nose and mouth. But after further attempt, the catheter was inserted through nasal cavity. Nilesh was standing and was quite in senses. He was taken near the x-ray table and at that stage, he suffered convulsions and practically fainted. He was resuscitated for the cardiac arrest with the assistance of O.P. No. 2 3. However, as the situation appeared to be complicated, he was removed to Sion Hospital. According to Dr. Lulla, therefore, there was no negligence on his part. 8.We may further state that Dr. Lulla did not obtain written-consent of either Nilesh Joshi or his father. This is an undisputed fact which is, however, tried to be explained by Dr. Lulla that both the father and son are educated persons. They were orally communicated with the risk involved in the bronchography and that the absence of written-consent should not come in the way of the Commission. The Commission can proceed on the premise that it was an informed consent. Dr. Lulla should not be blamed on that count. In this regard, our attention is drawn to the medical literature produced on behalf of the complainants. Bronchography is a radiographic study of the lower respiratory tract. The examination is primarily concerned with the bronchial tree. The contrast medium is introduced into the lung and the anatomy of the bronchial tree is recorded radiographically through the use of various patient's positions. Now, this bronchography is done with a view to ascertain the cause of cough which otherwise does not re-act positively to the medical treatment. The method of bronchography requires the least amount of specialised instruments. It uses the normal respiratory mechanism to disperse the contrast agent throughout the lung. The method involves the introduction of a catheter into the bronchial tree with several roots. The most commonly used are the nasal or oral. However, this is to be preceeded by atropin injection and sprayed on anaesthetic agent. When the anaesthesia is successfully administered the catheter is introduced. The catheter tip is taken by fluoroscopy. At that time, it is desired that there should be shortest possible exposure time to record the contrast filled lungs because immobilization of the patient for long period is not recommended. When the anaesthesia is successfully administered the catheter is introduced. The catheter tip is taken by fluoroscopy. At that time, it is desired that there should be shortest possible exposure time to record the contrast filled lungs because immobilization of the patient for long period is not recommended. The emergency cart must also be available in the radiographic room. Since this relates to airway obstruction, haemorrhage, spread of infection can be fatal. (Fundamentals of Special Radiographic Procedures by Albert M. Snopek- 3rd Edition). Simon in his Clinical Radiology (4th Edition) has observed that bronchography carries a small but neverthless well-recognised risk of reaction to the contrast agent. Serious reactions include bronchospasm, anaphylaxis and even death. For this reason, the examination should be undertaken only if it is thought that the information that it would provide would make a positive contribution to the management of the patient. This would, therefore, show that the patient before being subjected to bronchography should be acquainted with the reactions described above, one of which is death. Whitehouse in his book "Techniques in Diagnostic Radiology" has observed that respiratory function is significantly impaired during bronchography due to obstruction of smaller airways by the contrast medium. It is essential that any patient with airways obstruction, or poor lung function due to any other cause, is assessed by a chest physician before being submitted for bronchography. This observation would clearly show that the respiratory function is to be guarded against while carrying out bronchography. With the insertion of catheter either in the nasal or oral cavity, there is every likelihood of respiratory function being impaired possibly due to faulty insertion of the catheter. Serious consequences can come about in such an event. 9.It must also be stated that catheter has to be introduced through the anaesthetised nostril with the patient lying on the right side. Keeping the neck extended, the catheter is initially advanced along the floor of the nose and then through the nasopharynx with the mouth open and the tongue forward. The catheter is then gently manipulated between the cords under fluoroscopic control. It is stated that complications may arise from poor technique, from local anaesthetic overdose or as a result of the contrast medium. 10.It is further stated that atropine 0.6 mg IM should be given 30 minutes before to suppress the coughing reflex and dry bronchial secretions in order to attain better mucosal coating. It is stated that complications may arise from poor technique, from local anaesthetic overdose or as a result of the contrast medium. 10.It is further stated that atropine 0.6 mg IM should be given 30 minutes before to suppress the coughing reflex and dry bronchial secretions in order to attain better mucosal coating. The pharynx and larynx are sprayed with local anaesthesia and the nasal cavity on the side with the better airway. Catheter must be smeared with Xylocaine jelly and the same has to be passed through nasal cavity and the adequate anaesthesia should be obtained and that step is reached when the patient stops coughing or gagging each time the spray is applied. Particular attention should be paid to this step since without good local anaesthesia, laryngeal intubation will fail. The patient should be warned that as the tube is advanced down the windpipe, there will be a strong desire to cough and that this must be resisted, otherwise the tube may be coughed out. There must be talk in this regard between the patient and the Doctor. Successful passage of the tube is usually accompanied by coughing. Xylocaine anaesthetic is then injected down the catheter to anaesthetize the bronchial tree with the patient posturing in various positions. Local anaesthesia is rapidly absorbed from the bronchial mucosa with speed and atropine is important in reducing mucous secretion. We must reproduce the hints given by author Terence Doyle in his book "Procedure in Diagnostic Radiology". It is observed that if there is persistent difficulty in passing the tube through the vocal cords, the following manoeuvres may be attempted : (1) Have the patient rotate the head from side to side while attempting to advance the tube. (2) Make sure that the chin is well forward. This prevents swallowing and tends to direct the tube anteriorly in to the larynx. (3) Allow the patient to cough, the tube may slip through the cords during the prolonged inspiration following the cough. (4) If everything fails the tube may be introduced through the mouth and over the back of the epiglottis by being passed of a 'J' curved wire the tip of which will point the catheter between the cords. 11.Now, we have described as to what precautions must be taken during bronchography. We find that the patient should be acquainted with various symptoms he may develop during bronchography. 11.Now, we have described as to what precautions must be taken during bronchography. We find that the patient should be acquainted with various symptoms he may develop during bronchography. He should be informed that even the death could occur. There may be serious reaction of bronchospasm and anaphylaxis. When the catheter can not be inserted, the attempts described above should be followed. 12.It has been the consistent story of the complainants that they were not acquainted with these aspects; although Dr. Lulla seeks to make up this wanting written-consent by saying that it was an informed consent. We are afraid that such a consent must not have involved the consideration of serious reactions which we have noted above in the medical literature of Dr. Siman. Dr. Lulla should have informed Nilesh Joshi and his father that although the bronchography is in the nature of investigation of the lower respiratory tract, he could suffer serious reactions including bronchospasm, anaphylaxis and even death. This is a serious negligence on the part of Dr. Lulla. When the standard procedure requires thorough acquainttance of the risk involved in bronchography, the inaction on the part of Dr. Lulla in not informing all these aspects of bronchography certainly amounts to deficiency in service. 13.It must be stated that the complainant Sadanand Joshi immediately complained on 14-3-91 to the police at Matunga. Now, in that complaint, he has clearly indicated that Nilesh was examined in the earlier part of the day for sputum, blood and urine test. He was recalled at 1.00 p.m. Attempts were made to insert the catheter through nasal-cavities. There was bleeding. Further attempt was made to introduce the catheter in to the oral cavity. But the same also could not be done and that there was bleeding. We feel that this position is not disputed even by Dr. Lulla. Dr. Lulla has admitted that in the initial attempt of inserting the cather, there was bleeding both from the mouth and the nose. But later on, he succeeded in inserting the catheter in the nasal cavity and thereafter, the patient Nilesh Joshi suffered the serious spasm. He had convulsions of serious nature. Lulla. Dr. Lulla has admitted that in the initial attempt of inserting the cather, there was bleeding both from the mouth and the nose. But later on, he succeeded in inserting the catheter in the nasal cavity and thereafter, the patient Nilesh Joshi suffered the serious spasm. He had convulsions of serious nature. According to him, Nilesh was resisting the insertion of catheter and that it was accompanied by bleeding and further that inspite of this further forcible attempts were made to introduce the catheter in the cavities of nose, and this would certainly tentamount to negligence. He has also stated that there was swelling in the throat of Nilesh. 14.Dr. Lulla has given a summary of the case of Nilesh Joshi before the Police on 14-3-91 itself. According to him, Nilesh Joshi was referred to for bronchography by Dr. Natu, who might be a family- physician. Nilesh had chronic cough. The patient was explained the procedure and the necessary procedure was performed in the presence of father, under local anaesthesia. We may here state that local anaesthesia is permissible in bronchography and the general anaesthesia is not necessary. It is also observed that Radiologists like Dr. Lulla could administer local anaesthesia and we do not want to question the competence in that regard. According to Dr. Lulla, the patient was given atropine injection and was subjected to sensitivity test. The oral and nasal cavity was sprayed with xylocain jelly. A simple rubber catheter was passed by the nasal-cavity. There was initial resistance to the passage of the catheter. Oral catheterisation was attempted. But that was also not possible. However, Nilesh was comfortable after catheterisation. He has admitted that there was minor bleeding both from nostril and phyrinx; but the same stopped immediately. The patient talked to them for 10 minutes but when he was taken to x-ray table, after about 5 minutes he had got bouts of convulsions upon which physician, cardiologist and surgeon rushed and attempted to resuscicate the patient. Cardiopulmonary resuscication measures were started and endostrechea intubation was performed and mouth to mouth respiration followed. The patient was put on Mannitol drip. However, sinus tachycardia was detected. The patient was then removed to Sion Hospital under the care of Cardiologist and Anaesthetist. Now, this is the broad version given by Dr. Lulla at the initial stage. Cardiopulmonary resuscication measures were started and endostrechea intubation was performed and mouth to mouth respiration followed. The patient was put on Mannitol drip. However, sinus tachycardia was detected. The patient was then removed to Sion Hospital under the care of Cardiologist and Anaesthetist. Now, this is the broad version given by Dr. Lulla at the initial stage. We may observe here that in his reply given through his Advocate to the Advocate of the complainant, Dr. Lulla did not concede that there was bleeding. Even in the written-statement, the story of bleeding was not openly admitted. On the other hand, this allegation has been denied. But, we find that the story about the bleeding through nostril and oral cavity is well established in the case-summary given by Dr. Lulla to Police on the date of the complaint. One can not lose sight of the important fact that Nilesh was alright till the commencement of bronchography. He suffered bouts of convulsion soon after the commencement of bronchography. Attempts have been made by Dr. Lulla to insert the catheter. But this insertion failed in the first attempt both with reference to nasal and oral cavities. He was also aware of the fact that there was a bleeding from nostrils and mouth of the complainant. In that light of the matter, we feel that Dr. Lulla did not insert the catheter in the appropriate way. In the medical literature which we have referred above, there is no reference to the bleeding occurring during insertion of catheter if there was proper administration of anaesthesia both in the oral cavity as well as nasal cavity. We are, therefore, of the view that the intubation in the form of insertion of catheter by Dr. Lulla could not be said to be of required efficiency. Had the cavities been properly anaesthetised, during bronchography, there was no question of bleeding from the nostrils and mouth. If the catheter of 5 m.l. is introduced in the cavity, 5 c.m. i.e. in the throat, we fail to understand as to how the bleeding should take place unless the same is inserted with force and the same injures the larynx or the treachea. 15.In this regard, we take into consideration, the opinion of Dr. Phadtare, dt. 17-8-95. He has stated that bronchography is not routinely done for the complaint of chronic cough. 15.In this regard, we take into consideration, the opinion of Dr. Phadtare, dt. 17-8-95. He has stated that bronchography is not routinely done for the complaint of chronic cough. Most of the times, this procedure is done without anaesthist presence (ideally anaesthist presence is desired). The Radiologist conducting Bronchography gain such a specialised training during residency tenure. Usually, bronchography is done with anaesthesia; but the Radiologist is adequately equipped to give anaesthesia. Bronchography does carry definite risk and the occurence of such a risk may vary. He has, therefore, positively opined that the bronchography in the case of Nilesh Joshi was not necessary. The doctor could have opted for HRCT thorax. It is further stated by Dr. Phadtare that while performing the procedure, bleeding through both nostrils and bleeding through mouth would have prompted the concerned Consultant to abandon the procedure. Now, in the questionnaire that was supplied at the instance of State Commission, it is stated by Dr. Khond attached to Grant Medical College, Mumbai that patient tends to resist intubation of catheter through nasal or oral cavity, if there is inadequate local anaesthesia preferred, rough incubation or uncooperative and extremely anxious patient. It is further stated that various reasons are involved in bronchography and they are acute laryngospasm, bronchospasm, hypoventilation, hypoxemia of arterial desaturation, agitation, cardiac arrhythmia, variation in the heart beats. It is further stated that if there is in-adequate anaesthesia, it may cause acute laryngospasm and hypxomia and if not treated in time, it may be followed by convulsions. To the question that when the adult patient repeatedly resists the intubation, it is advised to remove and change the catheter, rule out mechanical obstruction, re-assure the patient and there should be additional local analgesia solution instillation. This would mean that in the case of Nilesh Joshi, it was obligatory for Dr. Lulla to either change the catheter, examine the mechanical obstruction, re-assure the patient and there should be administration of local analgesia. We find that these particulars are not found in the stand taken by Dr. Lulla. On the other hand, the symptoms which were given by Nilesh when the catheter was to be introduced, there was bleeding nose and mouth. It must also be appreciated that Nilesh must not have been aware of these consequences and possibly might have been shocked at the site of bleeding from nose and mouth. Dr. Lulla. On the other hand, the symptoms which were given by Nilesh when the catheter was to be introduced, there was bleeding nose and mouth. It must also be appreciated that Nilesh must not have been aware of these consequences and possibly might have been shocked at the site of bleeding from nose and mouth. Dr. Lulla has stated that if the patient suffered any shock, there could be cardiac arrest and that would be in the shape of convulsions. Dr. Lulla does not support the story of rough intubation when there is a story of rough intubation canvassed by the patient's father Sadanand Joshi. His presence is not disputed. His conduct is corrobotated by the filing of the police complaint wherein there is a story of forcible insertion of catheter. There is no parallel story by Dr. Lulla that catheter was changed. We think the manner in which the catheterisation was undertaken was patently not upto the standard. Dr. Phadtare has rightly stated that if there was a bleeding from nose and mouth, Dr. Lulla should have abandoned the bronchography. 16.For this purpose, Dr. Lulla relies on the affidavits of Dr. Kondwilkar and Dr. Praveen Jain. Dr. Kondwilkar does not throw any light except the bare statement that the procedure was correctly followed. But that was solely narrated by Dr. Lulla. We, therefore, feel that no assistance is given by Dr. Kondwilkar to the cause of Dr. Lulla. Dr. Jain has also tried to do the same line of reasoning. He has stated that bronchography is the sole decision of the referring physician and not of the radiologist. Here we may state that the referring physician can not mandate bronchography if the radiologist feel that such an examination is not necessary. Since the bronchography involves the serious risk, the duty is cast upon the radiologist to take the decision that the bronchography appears to be necessary. It is better that this decision is verified by the examination of the patient by chest-physician. We are of the view that Dr. Natu is not an established chest-physician. He seems to be a family Doctor. Apart from all this, we are satisfied that Dr. Lulla did not perform the initial part of bronchography with that efficiency as it was necessary. The net result was that the simple insertion of catheter brought about bleeding from the nose and mouth of the patient. Natu is not an established chest-physician. He seems to be a family Doctor. Apart from all this, we are satisfied that Dr. Lulla did not perform the initial part of bronchography with that efficiency as it was necessary. The net result was that the simple insertion of catheter brought about bleeding from the nose and mouth of the patient. Despite this, he persisted with the insertion of the catheter and that possibly put the patient in the state of shock causing anoxic brain damage. The present condition of Nilesh Joshi is well beyond the controversy. He has become vegetable. 17.Coming to the question of liability of O.P. No. 2 3, Dr. V.T. Shah and Dr. (Mrs.) M.V. Shah, we find that Dr. Lulla has been described as a Consultant. In all accounts, he has been paid certain sum varying from Rs. 5,000/- to Rs. 7,000/-. The O.P. No. 2 3 have stated that Dr. Lulla used to attend as Radiologist and used to perform the necessary examination viz. milogram, berium test, bronchography etc. These are the radiological examinations under fluoroscopic control. It is indeed true that the fees are specified in the accounts of the Hospital. The accounts clearly show that Dr. Lulla was paid the fees about the examination carried out by him. There are on record, the examinations which Dr. Lulla carried out on his own. The case-papers are of Mr. M.C. Antony, Mr. G.K. Pathan, Mrs. Kokila N. Salot, Dr. (Mrs.) Vasantiben Shah). In all these prescriptions, there is reference of some Doctor and the prescription is by Dr. Lulla on the letter- heads of O.P. No. 2 3. These prescriptions clearly show that Dr. Lulla used to examine the patients on his own. We are, therefore, unable to hold that Dr. Lulla was an employee of O.P. No. 2 3. He was being paid by O.P. No. 2 3 in accordance to patients' radiological examination. He was paid the amounts as per the work done by him. But the story about the employer and employee which was being canvassed by Dr. Lulla against O.P. No. 2 3 does not sustain from the documents produced in the case. We are, therefore, unable to hold that the O.P. No. 2 3 are vicariously liable. We are clearly giving the finding that there was deficiency in service rendered by Dr. Lulla in the bronchography treatment of Nilesh Joshi. Lulla against O.P. No. 2 3 does not sustain from the documents produced in the case. We are, therefore, unable to hold that the O.P. No. 2 3 are vicariously liable. We are clearly giving the finding that there was deficiency in service rendered by Dr. Lulla in the bronchography treatment of Nilesh Joshi. Nilesh has become invalid for all the purposes. The complainants are, therefore, entitled for compensation. (i) Nilesh Joshi has suffered this attack when he was 27-28 years. He is an Engineer and was employed with Empire Industries Ltd., Mumbai on the monthly salary of Rs. 3,500/-. He has a wife and a son. They are dependent on him. Even the parents are dependent on Nilesh Joshi. Nilesh Joshi would have contributed atleast Rs. 2,000/- p.m. for the maintainance of these member. We take an average of Rs. 2,000/- although it is likely that Nilesh would have earned more and could have spent more at that time. The working span of Nilesh Joshi would be next 30 years. In that light, we take 20 as multiplier on the basis of lumpsum payment. This amount comes to Rs. 4,80,000/-. It is not in dispute that Nilesh Joshi can not perform the normal functions. He has become vegetable. He has become invalid for all purposes. He laughs and speaks when not required. The wife of Nilesh Joshi has, therefore, lost the consortium of a husband and on that count, she is entitled to Rs. 50,000/-. On the question of State of health of Nilesh, as stated above, he has become a totally physically wreck. On that count, we are inclined to grant Rs. 2,00,000/-. The other items which needs attention is that Nilesh has become an object of dependence on the family members. The family will have to engage services of the servant. The family would be required to pay atleast Rs. 500/- for the monthly salary. That amount comes to Rs. 6000/- per year, and for 20 years which can be quantified at Rs. 1,20,000/-. Rs. 50,000/- should be paid by way of expenses on the medical treatment. We can not lose sight of the important fact that he was admitted in the Hinduja Hospital. The total amount thus comes to Rs. 9,00,000/-. This amount should be paid by Dr. Lulla to complainants. We, therefore, pass the following order : ORDER "O.P. No. 1 Dr. Rs. 50,000/- should be paid by way of expenses on the medical treatment. We can not lose sight of the important fact that he was admitted in the Hinduja Hospital. The total amount thus comes to Rs. 9,00,000/-. This amount should be paid by Dr. Lulla to complainants. We, therefore, pass the following order : ORDER "O.P. No. 1 Dr. Lulla C.P., shall pay Rs. 9,00,000/- Rs. Nine lakhs to the complainants within eight weeks of this order ; failing which he shall additionally pay interest@ 12% thereon from the date of this complaint till actual payment." (ii) The claim against the O.P. No. 2 and 3 is, however, dismissed. (iii) No order as to cost to the complainants or to O.P. No. 2 3. (iv) However, before parting with this matter, we can not fail to recognize the important role played by Advocate Shri Shirish Deshpande in acting on behalf of the complainants, whose medical knowledge was by no means can be said to be adequate to meet the requirements of the complaint. Advocate Shri Shirish Deshpande collected medical literature in support of the complainant's case. He also assisted the Commission in ascertaining the truth in the complaint. We, therefore, feel that such a voluntary act on the part of Advocate Shri Shirish Deshpande should not go unnoticed and un-rewarded. In the circumstances, we feel that Advocate Shri Deshpande should be paid Rs. 5,000/- by the O.P. No. 1 Dr. Lulla by way of cost. *****